The commission asked the judge that recommended the ban to reconsider.

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The International Trade Commission's six-member deciding panel deferred judgment today on a patent dispute between Google's Motorola Mobility and Microsoft, pushing the possibility of a ban on the Xbox 360 out of likelihood this year.

In April, Ars reported that ITC Administrative Law Judge David Shaw found Microsoft's Xbox 360 gaming consoles to infringe on Motorola's patents concerning video transmission and compression, as well as methods of enabling 802.11 WiFi. Judge Shaw recommended a ban on importing Xbox consoles to the US. From there, the ruling went to the ITC's 6-member commission, who today ordered a remand of Judge Shaw's decision, and asked him to continue his investigation with a new target date in mind.

After Judge Shaw's initial decision, the FTC sent a memo saying that an Xbox ban could create considerable harm to consumers. Additionally, companies like Apple, Nokia, Intel, Cisco, and Activision; as well as a handful of Republican representatives, spoke out against the import ban, saying it would undermine the standards set for patents classified as requiring fair, reasonable, and non-discriminatory(FRAND) licensing terms.

The final decision on an import ban was expected in August. But the ITC's request to Judge Shaw to reconsider his decision will likely take months longer than expected and could well result in a more favorable decision for Microsoft.

35 Reader Comments

Was there anything specifically that they asked the judge to reconsider? I would think that his initial investigation (given the many months it has been since Motorola filed its initial complaint) was quite thorough. I don't really get this ruling. Usually a court will make some sort of ruling and then send a case back to district level for reconsideration, but nothing seems to have materially changed here.

What impact does comments from the FTC and other companies in the industry have on the investigation?

Forgive me if this is a bit dense, but I'm confused about the wording. The ITC is American, and Microsoft is an American company. Is the "import ban" coming from the fact that Xboxes are made in China? If that's the case, couldn't Microsoft sidestep the ban by building them in the US, albeit at a loss of profit margin?

Forgive me if this is a bit dense, but I'm confused about the wording. The ITC is American, and Microsoft is an American company. Is the "import ban" coming from the fact that Xboxes are made in China? If that's the case, couldn't Microsoft sidestep the ban by building them in the US, albeit at a loss of profit margin?

ITC is the international trade commission.

Manufacturing in the US isn't realistic. Labor laws, pollution laws, and lack of existing production lines make it too slow and expensive to manufacture products here. You can't price competitively, nor can you meet production demands.

Hello, FTC? How does an injunction on the Google Nexus not "cause considerable harm to consumers"? Where were you for that court case?

Because Galaxy Nexus was not banned on the basis of standard essential patents. When a company is granted an agreed upon standard they are expected to license it under FRAND terms (Fair Reasonable and Non-Discriminatory). The patents that Apple is suing Samsung with are not standard essential patents.

Essentially what happened is Motorola and Samsung did not have any valid patents to use against Apple so they resorted to using their standard essential patents and trying to demand unreasonable and discriminatory licensing fees from Apple and Microsoft. So now the EU and the US regulators have to come down hard on Motorola and Samsung before the whole system falls apart as standards become pointless. Google could have put a stop to what Motorola was doing, so this is really bad for them too since they're already being probed for anti-trust reasons related to their search results being anti-competitive.

Hello, FTC? How does an injunction on the Google Nexus not "cause considerable harm to consumers"? Where were you for that court case?

There are other Android phones that the users can buy. There’s no "other" Xbox that someone can get but the Microsoft one, so banning the Xbox would be harmful towards the investment in games and Xbox Live and what not (for example if the Xbox breaks and the consumer wants to buy a new one). Taking the only option a consumer has off the market is different than taking off one out of dozens.

Of course there’s the argument of how "vital" having a entertainment system is to a consumer, but still. Banning Xbox is worse than banning one or two Andriod phone models.

Hello, FTC? How does an injunction on the Google Nexus not "cause considerable harm to consumers"? Where were you for that court case?

In theory because you could work around the patents Apple (and MS for that matter) are applying (expect this to happen really soon if the nexus ban sticks), but it's much harder to work around standard essential patents because otherwise you're not following the standard and thus probably aren't interoperable. That and there's usually a FRAND promise associated with standard essential patents as well, so there's a breach of contract issue on top of that even though FRAND is very poorly defined..

In practice a lot of the patents issues have been ridiculously broad and even non standard essential patents can be hard to work around and/or really should never have been issued (rectangle with round corners? really?) so it's not that clear cut. Combined with the sheer number of patents large tech companies have at this point and unless you can force a settlement you'll be stuck in litigation/workaround limbo forever. That's why Google/MMI played this the way they did - it's the only card they really had.

MS/Apple uses this to maximum advantage by suing everyone either directly or through patent trolls, while dragging their feet on licensing the FRAND ones.

Does it really matter if these patents is FRAND when your getting sued by some USING the FRAND patents?

Yes. The patents that Google is being sued over are patents that were not included in industry standards. You had to have a special need to have a reason to license them. The patents Google is suing over were included in industry standards, and a condition of that was that they license them under FRAND. If they had chose not to at the time, then the standard would not have included them and gone with an alternative.

Which, btw, is what Google could have done with the patents they are infringing, but they chose not to.

Oh you can be sure Motorola has plenty of other patents to go after Apple and Microsoft. This was just an easy opening salvo. If it sticks, great for Moto. If not, go through the stack and start firing off suit after suit over the niggling stuff we all will sneer at as being obvious.

Don't expect this wonderful business to end anytime soon. In fact, my hope is at some point, Americans have to drive into Canada or Mexico to buy electronic toys to get past ITC import bans.

They hold dominance over different markets. MS is still very strong in desktop and server products. Google is stronger in web space and recently mobile phone market. They have been trying to push into each other's market for a long time now.

There are other Android phones that the users can buy. There’s no "other" Xbox that someone can get but the Microsoft one..

Uh ... the consumers can buy a Wii or a PS3. That's just a silly argument.

Let me elaborate a bit ...

If you consider Android as an ecosystem, because Samsung will compete against HTC to sell phones in the same ecosystem, then Xbox itself is in an ecosystem that also has Wii, PS3, PSP, Vita, DS, DSi, 3DS ... you get the picture.

Google inherited Motorola's lawsuits. I am hoping now that the acquisition is complete, that Google can find a way to gracefully exit these suits. Else, it will make their previous positions on patents seem a touch hypocritical.

Uh ... the consumers can buy a Wii or a PS3. That's just a silly argument.

Let me elaborate a bit ...

If you consider Android as an ecosystem, because Samsung will compete against HTC to sell phones in the same ecosystem, then Xbox itself is in an ecosystem that also has Wii, PS3, PSP, Vita, DS, DSi, 3DS ... you get the picture.

There are other Android phones that the users can buy. There’s no "other" Xbox that someone can get but the Microsoft one..

Uh ... the consumers can buy a Wii or a PS3. That's just a silly argument.

Let me elaborate a bit ...

If you consider Android as an ecosystem, because Samsung will compete against HTC to sell phones in the same ecosystem, then Xbox itself is in an ecosystem that also has Wii, PS3, PSP, Vita, DS, DSi, 3DS ... you get the picture.

Yeah... No.

If a Google Nexus phone is banned and mine breaks, I can buy another Android phone and run all of my existing Android software on it, caveat fragmentation. If the Xbox is banned and mine breaks, I can't run Gears of War 3 or Halo 4 on a PS3 or Wii. When making analogies, you have to ensure that you're actually comparing analogous properties.

Oh you can be sure Motorola has plenty of other patents to go after Apple and Microsoft. This was just an easy opening salvo. If it sticks, great for Moto. If not, go through the stack and start firing off suit after suit over the niggling stuff we all will sneer at as being obvious.

Why do you make this assumption? Moto has been embroiled for years now, and FRAND patents are the best they could do. The problem with Moto is that most of their patents in this space are old.

Google inherited Motorola's lawsuits. I am hoping now that the acquisition is complete, that Google can find a way to gracefully exit these suits. Else, it will make their previous positions on patents seem a touch hypocritical.

Not going to happen.

By the way, authors, can we dispense with this "Motorola" nonsense already?At this point, it's pure Google. Google wins or loses on this case.

Quit hiding them from the responsibility of this FFS.It's not Motorola's Xbox ban.

It's Google's Xbox ban.

Most of the world never reads beyond the headlines, so they ought to know the true perpetrator.

For the record, lets review who publically filed statements with the ITC saying that they should NOT allow import bans based on Standards Essential Patent disputes: The FTC, IBM, Activision, Intel, AT&T, HP, Cisco, Verizon, Nokia, BSA, ESA, RILA, ACT, Apple, Microsoft (in support of each other's cases) and a number of important congressmen from outside of either parties home turf (WA, IL) who are on competition, IP, and judicial committees.

Now let's review who has filed statements supporting import bans based on Standard Essential Patents. No one.

You have to be a massive fanboy, or not understand why SEP's are different and more important to the public than standard patents, to think that Google is somehow in the right here. They're being evil, and they're hiding behind the fact that Motorola started down this path as their justification.

Hello, FTC? How does an injunction on the Google Nexus not "cause considerable harm to consumers"? Where were you for that court case?

There are other Android phones that the users can buy. There’s no "other" Xbox that someone can get but the Microsoft one, so banning the Xbox would be harmful towards the investment in games and Xbox Live and what not (for example if the Xbox breaks and the consumer wants to buy a new one). Taking the only option a consumer has off the market is different than taking off one out of dozens

It seems rather odd to use a monopoly status arrived at solely due to copyright and patent as a defense against punishment for violation of copyright and patent.

To me, that's an immediate sign (a-la the "too big to fail" banks) that something needs to be changed.

Hello, FTC? How does an injunction on the Google Nexus not "cause considerable harm to consumers"? Where were you for that court case?

There are other Android phones that the users can buy. There’s no "other" Xbox that someone can get but the Microsoft one, so banning the Xbox would be harmful towards the investment in games and Xbox Live and what not (for example if the Xbox breaks and the consumer wants to buy a new one). Taking the only option a consumer has off the market is different than taking off one out of dozens

It seems rather odd to use a monopoly status arrived at solely due to copyright and patent as a defense against punishment for violation of copyright and patent.

To me, that's an immediate sign (a-la the "too big to fail" banks) that something needs to be changed.

Of course, that is entirely ignoring the Standards Essential Patents part of this discussion, which is in fact that most critical bit of facts involved here, and the main reason they are deferring the issue after feedback from the entire technology and business industry. You cannot simply ignore that fact and come to a reasonable conclusion about the differing merits of each side's case. Google is trying to abuse the standards setting process to gain an advantage over their opponents in court. So far, it's not working out very well for them.

Hello, FTC? How does an injunction on the Google Nexus not "cause considerable harm to consumers"? Where were you for that court case?

There are other Android phones that the users can buy. There’s no "other" Xbox that someone can get but the Microsoft one, so banning the Xbox would be harmful towards the investment in games and Xbox Live and what not (for example if the Xbox breaks and the consumer wants to buy a new one). Taking the only option a consumer has off the market is different than taking off one out of dozens

It seems rather odd to use a monopoly status arrived at solely due to copyright and patent as a defense against punishment for violation of copyright and patent.

To me, that's an immediate sign (a-la the "too big to fail" banks) that something needs to be changed.

Of course, that is entirely ignoring the Standards Essential Patents part of this discussion, which is in fact that most critical bit of facts involved here, and the main reason they are deferring the issue after feedback from the entire technology and business industry. You cannot simply ignore that fact and come to a reasonable conclusion about the differing merits of each side's case. Google is trying to abuse the standards setting process to gain an advantage over their opponents in court. So far, it's not working out very well for them.

What does that have to do with the defense being presented above? Nothing.

I don't care about the specifics or the politics - I care that monopoly status is being argued as a defense against injunction. That's about as absurd as it gets, in my book.

Hello, FTC? How does an injunction on the Google Nexus not "cause considerable harm to consumers"? Where were you for that court case?

There are other Android phones that the users can buy. There’s no "other" Xbox that someone can get but the Microsoft one, so banning the Xbox would be harmful towards the investment in games and Xbox Live and what not (for example if the Xbox breaks and the consumer wants to buy a new one). Taking the only option a consumer has off the market is different than taking off one out of dozens

It seems rather odd to use a monopoly status arrived at solely due to copyright and patent as a defense against punishment for violation of copyright and patent.

To me, that's an immediate sign (a-la the "too big to fail" banks) that something needs to be changed.

Of course, that is entirely ignoring the Standards Essential Patents part of this discussion, which is in fact that most critical bit of facts involved here, and the main reason they are deferring the issue after feedback from the entire technology and business industry. You cannot simply ignore that fact and come to a reasonable conclusion about the differing merits of each side's case. Google is trying to abuse the standards setting process to gain an advantage over their opponents in court. So far, it's not working out very well for them.

What does that have to do with the defense being presented above? Nothing.

I don't care about the specifics or the politics - I care that monopoly status is being argued as a defense against injunction. That's about as absurd as it gets, in my book.

I do not see how that is an argument at all. Nobody is claiming the 360 is a monopoly. They are claiming that it is 'big' and your 'too big to fail' has some merit. But as far as I know the Wii still has the largest install base. I think the point being made is that an import ban on the 360 affects far more people than an import ban on any given Android phone(and really, only Motorola phones still stand to be banned, everyone else paid their license fees).

What Google is doing is very reminiscent of Rambus over the past decade. Make one set of claims to a standards body, then when their main business model fails, renege on those terms and sue everyone.

Oh you can be sure Motorola has plenty of other patents to go after Apple and Microsoft. This was just an easy opening salvo. If it sticks, great for Moto. If not, go through the stack and start firing off suit after suit over the niggling stuff we all will sneer at as being obvious.

Why do you make this assumption? Moto has been embroiled for years now, and FRAND patents are the best they could do. The problem with Moto is that most of their patents in this space are old.

Best does not mean only.

Who cares if you use crappy patents. The point isn't to win in a patent war. It's to spread destruction all around and leave the earth totally scorched.